1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PENSION BENEFIT GUARANTY Case No. 24-cv-01532-TSH CORPORATION, 8 Plaintiff, ORDER GRANTING APPLICATION 9 FOR ALTERNATIVE SERVICE v. 10 Re: Dkt. No. 9 VLADMIR LITVAK, 11 Defendant. 12 13 I. INTRODUCTION 14 Pension Benefit Guaranty Corporation (“PBGC”) requests the Court permit service of the 15 summons and complaint on Defendant Vladmir Litvak via posting at his last known address and 16 electronic mail. ECF No. 9. For the reasons stated below, the Court GRANTS the motion. 17 II. BACKGROUND 18 PBGC, as statutory trustee of the Volk Electric Inc. Retirement Plan (the “Plan”), filed this 19 action on March 13, 2024 under Title IV of the Employee Retirement Income Security Act of 20 1974, as amended,

(2012 & Supp. IV 2017). It seeks to recover losses 21 suffered by the Plan as a result of the Litvak’s alleged violations of ERISA. Compl., ECF No. 1. 22 From March 15-18, 2024, a process server retained by PBGC made multiple unsuccessful 23 attempts to effectuate service of the summons and complaint upon Litvak at his last known 24 address, 899 Avenue H, San Francisco, California 94130. Appl., Ex. 1, ECF No. 9-1. PBGC 25 subsequently obtained a Case Logging, Enforcement and Activity Reporting (CLEAR) report 26 which showed Litvak linked to an address at 815 Hyde St #100 San Francisco, CA 94109. On 27 March 28, 2024, the process server attempted to serve Litvak at that address, but it turned out to be 1 On April 22, 2024, PBGC sent a message to Litvak via electronic mail to the email address 2 used in previous communications between PBGC and Litvak. Appl. at 3. The message informed 3 Litvak of PBGC’s attempts to serve him and included a copy of the summons and complaint.

4 PBGC requested Litvak provide an address at which he could be served, but he did not respond. 5

PBGC also sent correspondence to Litvak via U.S. Postal Service certified mail and FedEx 6 Delivery to his last known address. Appl., Ex. 3, ECF No. 9-3. PBGC received a signed 7 confirmation from the postal service that the certified mail correspondence was delivered on May 8 16, 2024.

PBGC also received unsigned confirmation that the FedEx package was delivered 9 on May 3, 2024.

Because the certified mail was successfully delivered, PBGC made two 10 additional attempts to serve Litvak at that location via process server on June 6 and10, 2024.

11 Ex. 4, ECF No. 9-4. The process server was unsuccessful, stating the doors were locked and no 12 one was present.

13 PBGC filed the present application on June 20, 2024, arguing that further attempts to 14 personally serve Litvak would be futile. PBGC believes that the identified address, 899 Avenue 15 H, San Francisco, California 94130, is Litvak’s true and correct address because, during the Plan 16 termination process in 2022 and continuing after PBGC became statutory trustee of the Plan in 17 March 2024, he used this address when communicating with PBGC. Appl. at 3. PBGC states that 18 Litvak represented this address as being both his personal and business address.

PBGC 19 requests the Court permit service by posting on the front door of 899 Avenue H, San Francisco, 20 CA 94130, and by electronic mail to the email address used in previous communications between 21 PBGC and Litvak. 22 III. LEGAL STANDARD 23 Federal Rule of Civil Procedure 4 governs service of the complaint and summons. Under 24 Rule 4(e), an individual named defendant can be served within a judicial district of the United 25 States by “delivering a copy of the summons and of the complaint to the individual personally.” 26 Alternatively, a defendant may be served in accordance with Rule 4(e), which allows for service 27 “following state law for serving a summons in an action brought in courts of general jurisdiction 1 4(h)(1)(A). California law provides for service of summons by personal delivery, substitute 2 service, mail, or publication. Cal. Code Civ. Proc. §§ 415.10-.50. 3 Courts may also authorize alternative methods of service pursuant to California Code of 4 Civil Procedure section 413.30, which provides, “[w]here no provision is made in this chapter or 5 other law for the service of summons, the court in which the action is pending may direct that 6 summons be served in a manner which is reasonably calculated to give actual notice to the party to 7 be served and that proof of such service be made as prescribed by the court.” Due process 8 requires that service of process must be “reasonably calculated, under all circumstances, to apprise 9 interested parties of the pendency of the action and afford them an opportunity to present their 10 objections.” Rio Props., Inc. v. Rio Int’l Interlink,

(9th Cir. 2002) 11 (quoting Mullane v. Cent. Hanover Bank & Trust Co.,

(1950)); see also Optima 12 Direct, LLC v. Yageo Am. Corp.,

, at *2 (N.D. Cal. Dec. 21, 2021). 13 IV. DISCUSSION 14 The Court finds PBGC has been diligent in its efforts to effect service on Litvak, having 15 attempted to serve him with the documents by personal service via a process servicer, U.S. mail, 16 and FedEx. As those attempts have failed, any further attempts to serve Litvak by personal service 17 would be futile. Therefore, the Court finds an alternative method for service is necessary. 18 Courts have permitted alternative service by having a process service post documents on 19 the front door of a residence. See Andersen v. Thompson,

, at *2 (N.D. Cal. 20 Feb. 17, 2022) (permitting service by posting on front door where previous attempts by email, 21 U.S. mail, and personal service via a process servicer were unsuccessful). Courts have also 22 permitted service by email in circumstances where “the plaintiff demonstrated reasonable 23 diligence in its attempts to serve the defendants” and “service by email is reasonably calculated to 24 give actual notice to the defendants.” Cisco Sys., Inc. v. Shaitor,

, at *4 (N.D. 25 Cal. June 25, 2018) (citations omitted); Gnathonic, LLC v. Dingman,

, at *2 26 (C.D. Cal. Oct. 2, 2019). Accordingly, the Court shall permit PBGC to serve Litvak by these 27 alternative means. 1 V. CONCLUSION 2 For the reasons stated above, the Court GRANTS PBGC’s application to permit service by 3 alternative means as follows: 4 (1) PBGC shall have the process server post a copy of the complaint, summons, and this 5 order on the front door of his last known address, 899 Avenue H, San Francisco, California 94130; 6 (2) PBGC shall also have the process server mail the complaint, summons, and this order 7 to Litvak via certified mail at 899 Avenue H, San Francisco, California 94130; and 8 (3) PBGC shall email a copy of the complaint, summons, and this order to the email 9 address used in previous communications between the parties. 10 The Court EXTENDS the deadline for PBGC to complete service to July 24, 2024. The 11 Court shall conduct a case management conference on September 26, 2024 at 10:00 a.m. by Zoom 12 || video conference. The webinar link and instructions are located at 5 13 https://cand.uscourts.gov/judges/hixson-thomas-s-tsh/, This conference shall be attended by lead 14 || trial counsel. Parties who are not represented by counsel must appear personally. By September 15 19, 2024, the parties shall file a Joint Case Management Statement containing the information in a 16 || the Standing Order for All Judges in the Northern District of California, available at: 3 17 http://cand.uscourts.gov/tshorders. The Joint Case Management Statement form may be obtained 18 at: http://cand.uscourts.gov/civilforms. 19 IT IS SO ORDERED. 20 21 Dated: June 25, 2024 22 AN. Lj □□□ 73 THOMAS S. HIXSON United States Magistrate Judge 24 25 26 27 28